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[2015] ZALCJHB 231
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Satellite And Steel World v Mabogwana and Others (JS 625/13) [2015] ZALCJHB 231 (31 July 2015)
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: JS 625/13
DATE: 31 JULY 2015
Not Reportable
In the matter between:
SATELLITE AND STEEL
WORLD
.......................................................................................
Applicant
And
GIDION MAROTHI MABOGWANA
AND
OTHERS
......................................................................................................................
Respondents
Heard: 27 February 2015
Delivered: 31 July 2015
Summary: Application for rescission
of judgment
JUDGMENT
WHITCHER J
Introduction
[1] This is an application in terms of
Rule 16A and section 165 of the LRA to rescind the court order
granted by this court on 14
November 2013 in terms of which it was
ordered that the dismissal of the respondents for operational reasons
was substantively
and procedurally unfair and that the applicant pay
compensation to the respondents in the amount of R413 692.00, which
order was
granted in the applicant’s absence.
[2] The applicant submits that it was
not in wilful default, has a reasonable explanation for not attending
court on 14 November
2013 and has good prospects of success in the
main case. The respondents oppose these submissions.
[3] The applicant claims that on or
about 17 June 2014 it became aware for the first time of the order of
the court when the Sheriff
attended its premises with a writ of
execution. The writ was issued on the basis of the court order.
[4] The applicant contends that the
matter should not have proceeded in its absence because it had filed
papers which clearly indicated
that the matter was opposed and
because it appears from the court file that the set down notice of
the matter on 14 November 2013
was not served on it.
[4] Regarding its contention that it
ought to have been clear to the court that the matter was opposed,
the applicant relied on
the fact that on 1 November 2013 it had filed
a notice of intention to oppose the respondent’s statement of
case. I note
here that the respondent’s statement of claim was
served on 18 July 2013 and filed on 23 July 2013 and default judgment
was
applied for on 8 August 2013. So the notice to defend was filed 3
months after the statement of claim and the application for default
judgment was filed.
[5] The applicant contends that its
filing of a response to the respondent’s statement of claim
further proves that it had
always intended to oppose the respondents’
claim. This response to the respondents’ statement of claim was
however
only served and filed on 8 January 2014, namely 5 months
after receipt of the respondents’ statement of claim and after
default
judgment had already been granted to the respondents.
[6] In essence that is the sum total of
the applicant’s claims regarding its contention that it has a
reasonable explanation
for its absence and was not in wilful default.
[7] The applicant contended that it has
good prospects of success in the main case. However, I do not see the
need to consider this
submission because in my view the applicant has
failed to establish that the court ought to have considered the
matter as an opposed
one and have failed to provide a reasonable
explanation for their failure to properly oppose the matter in time.
[8] As noted above the respondents’
served and filed their statement of case on 23 July 2013 and the
matter was determined
on 14 November 2013. By the 13 November 2013,
almost 4 months after the filing of the statement of claim, all the
applicant had
filed was a notice of intention to oppose. As
submitted by the respondents, a notice of intention to oppose is just
a notice and
is not a pleading or response to a statement of claim in
terms of the Rules of the Labour Court. The matter was therefore not
properly
opposed. As such there was no need to send the applicant the
notice of set down.
[9] The applicant was forewarned that
the matter would be heard in its absence should it fail to serve and
file its response to
the respondents’ statement of claim. In
their statement of claim the respondents warned the applicant that
‘if a party
intends to oppose the matter, a response must be
served within 10 working days of the service of this statement in
terms of rule
6(3) of the Rules of the Labour Court, failing which
the matter may be heard in that party’s absence’.
[10] The applicant ought to have known
that it ran the risk of having default judgment taken against it by
excessively delaying
filing a proper response to the statement of
claim. It was represented at all times by legal experts, first
Labournet and at the
time of the filing of its notice of intention to
oppose by attorneys. There is no explanation from any person from the
applicant
or their representatives as to why the proper pleadings
were not filed in time and why the applicant did not take steps to
ascertain
whether they were being duly processed. In fact the
applicant’s explanation for its actions is extremely vague.
[11] The applicant has only itself to
blame for its absence in that it failed to act timeously and to
respond appropriately to the
respondent’s statement of claim.
Order
[12] The application is dismissed with
costs.
Whitcher J
Judge of the Labour Court of South
Africa
APPEARANCES
FOR THE APPLICANT: Andrew Goldberg
Goldberg Attorneys
FOR THE RESPONDENT: A J Posthuma,
Snyman Attorneys